P. Natesa Nattar vs J.G. Daniel (died) and Others

P.V. Rajamannar, C.J.—This appeal against the judgment of Basheer Ahmed Sayeed, J., arises out of a suit filed in the City Civil Court at

Madras by the respondent, J.G. Daniel, for possession of a house. The suit house belonged originally to one Kuppuswami Nattar who executed a

mortgage over the property in 1926 to secure a sum of Rs. 1,000 borrowed by him from one Angammal. Angammal assigned the mortgage in her

favour to one Rajagopala Naidu who in turn assigned it to one Kuppuswami Naidu. Kuppuswami Naidu filed a suit on the mortgage against the

minor son of Kuppuswami Nattar who had died and obtained a decree for sale. The final decree was assigned to the plaintiff in 1943 and he was

brought on record as the transferee decree-holder. He thereafter applied for sale of the house and purchased the house himself in Court-auction

after obtaining leave to bid. After obtaining sale certificate when the plaintiff attempted to take possession of the suit property the defendant

obstructed, urging that he was in possession in his own right. Hence the appellant was compelled to file a suit. Several defences were raised by the

defendant which it is not necessary to mention for the purpose of disposal of this appeal. Inter alia he contended that the suit was barred by

limitation as the plaintiff and his predecessors in title were never in possession of the suit property within twelve years prior to the suit. He also set

up a case of adverse possession alleging that he and his father Ponnappa before him had been in possession and management of the property even

prior to 1926. Two issues were raised so far as limitation was concerned, namely,

Issue 2. - Is the suit barred by limitation, and has the defendant obtained title to the suit property by adverse possession and prescription?

Issue 3. - Has the plaintiff and his predecessors been in possession of the suit property within 12 years of suit?

The learned Judge of the City Civil Court who tried the suit found in favour of the defendant on Issue 2, namely, that the defendant had obtained

title to the suit property by adverse possession and on Issue 3 he found that the plaintiff and his predecessors in title had not been in possession of

the suit property within twelve years of suit. In view of these findings the suit was dismissed. The plaintiff appealed to this Court (C.C.C.A. No.

145 of 1951). The appeal was heard and disposed of by Basheer Ahmed Sayeed, J. He allowed the appeal and set aside the decree of the

learned City Civil Judge and passed a decree in favour of the plaintiff. He found that the original mortgage in favour of Angammal was a simple

mortgage, and the defendant and his predecessors even if they had been in possession of the mortgage property, such possession would not be

adverse either to the mortgagor or to the mortgagee and that it was not therefore necessary for the plaintiff to prove that he and his predecessors

were in possession of the property in suit within twelve years. The learned Judge therefore did not give any specific finding on the two issues and

particularly Issue 3, on the facts. His finding on Issue 2 was based on the assumption in law that the possession of the defendant could not be

adverse to the mortgagor because the mortgage was a simple mortgage, and he thought it was unnecessary to go into the facts to give a finding on

Issue 3 because it was not necessary in the circumstances for the plaintiff to prove that he and his predecessors in title were in possession within

twelve years before the suit. With respect to the learned Judge we are constrained to say that he was in error in the legal assumptions on which his

judgment is founded. It is no doubt well-established, vide Vyapuri v. Sonamma Boi Ammani (1915) 29 M.L.J. 645 : ILR (1915) Mad. 811, that

adverse possession against a mortgagor would not affect the right of a simple mortgagee. This would be so even in an extreme case in which the

rights of the mortgagor might become extinguished by adverse possession by a trespasser. Srinivasa Ayyangar, J., in Vyapuri v. Sonamma Boi

Ammani (1915) 29 M.L.J. 645 : ILR (1915) Mad. 811, observed (at page 825):

I see no reason therefore for holding that the extinction of the mortgagor''s title by the adverse possession of a third party operates to extinguish the

mortgagee''s right to enforce his charge, any more than easements over the property.

There is no authority however for the position that once a simple mortgage is executed there could be no possession by a third party adverse to the

rights of the mortgagor. On principle such a position is untenable. The mortgagor is entitled to the equity of redemption, and if the mortgage is a

simple mortgage, is entitled to be in possession. There is no reason why a third party should not oust him from possession, and by continued

possession over the statutory period of twelve years extinguish the mortgagor''s right to be in possession. Once such right is extinguished the result

would be that the third party-trespasser would acquire the equity of redemption. Of course, as already mentioned, this result would not however

affect adversely the rights of the mortgagee.

The position therefore is this, that the learned Judge did not examine the facts and give his finding on both the material issues relating to limitation.

But we do not think it is necessary to remand the case for fresh disposal. We shall assume for the purpose of this appeal that the defendant has not

been able to establish adverse possession for over the statutory period. Nevertheless it will be incumbent on the plaintiff to prove that he and his

predecessors in title have been in possession of the suit property within twelve years of suit. This is the rule of law laid down by the Full Bench of

this Court in Official Receiver, East Godavari v. Govinda Raju ILR (1940) Mad. 953. It was there laid down that in suits for ejectment where the

plaintiff sues for possession of immovable property in the occupation of another, the plaintiff cannot rest his case on title alone. Article 142 of the

Limitation Act applies to such suits and the plaintiff must show that he has exercised rights of ownership by being in possession within twelve years

of suit. There too the plaintiff was a purchaser at a Court-auction held in execution of a mortgage decree which was obtained in a suit brought on a

simple mortgage. Now it cannot be denied, and learned Counsel for the plaintiff-respondent frankly admitted that there is no evidence in this case

that the plaintiff and his predecessors in title were in possession of the property within twelve years before suit. The only oral evidence adduced is

that of the plaintiff himself and obviously he does not know anything about the position before his purchase. The documentary evidence does not

assist the plaintiff in proving that he and his predecessors in title were in possession at any time within a period of twelve years prior to suit. It is

therefore unnecessary to remand the case for fresh disposal. The plaintiff''s suit must be held to be barred by Article 142 of Schedule 1 of the

Limitation Act. The appeal is allowed and the plaintiff''s suit is dismissed. As the plaintiff obviously has title in view of the fact that the mortgage was

valid, we direct that each party should bear his own costs in all the Courts. As the appeal was filed in forma pauperis, the appellant will pay the

Government the Court-fee payable on the memorandum of appeal.